Continuing with my commentary on the “five important lessons” that law professors Josh Blackman and Randy Barnett set forth as guidance for the next Republican president:
4. “Focus on the Constitution, not issues du jour.”
This advice from Blackman and Barnett is highly idealistic but politically naïve. Much worse, they fail to recognize that a nominee’s positions on the “issues du jour” will often shed the most revealing light on his broader constitutional philosophy.
Blackman and Barnett say that it is “understandabl[e]” but “myopic” for presidents to “try to discern how a nominee would likely vote on the specific issues that matter most to the president.” But (as I discussed in point 1) this myopia is baked into the system: Folks in the Obama White House are very happy that Justices Sotomayor and Kagan have been reliable votes for everything they care about. In the (unlikely) event that either alters course ten years down the road, that will matter very little to Obama and his team.
Blackman and Barnett contend that “zeroing in on a single issue, whether it is abortion, the war on terror, or same-sex marriage, has proven to be a miserable predictor of future judicial behavior.” But they’re confusing the difficulty of extracting genuine information from a nominee with the value that genuine information would have. If you show me a candidate who thinks that Roe v. Wade or Obergefell v. Hodges was rightly decided, that information will be an excellent predictor of the candidate’s performance on the Court—including of his ability not to be “cowed by the Beltway social pressures and the New York Times editorial page.” How odd that Blackman and Barnett emphasize the value of a paper trail (point 2) but then seem averse to drawing sensible inferences from that paper trail.
Blackman and Barnett recommend that Republican presidents seek out candidates who are committed to originalism. Again, I agree with them. But unless “committed to originalism” is going to become another malleable cliché, it is important to understand what that means. Again: If you show me an originalism-professing candidate who thinks that Roe or Obergefell was rightly decided, that’s far more valuable information than ten law-review articles advocating originalism in the abstract.
Further displaying their ivory-tower remoteness from political reality, Blackman and Barnett contend that “[o]nly persons with a demonstrated commitment to, and understanding of the original meaning of the text of the Constitution should be chosen” for any judicial position. How many such originalists do they think exist? Would they really disqualify, say, Justice Alito because he is not a committed originalist? [Update/clarification: Whether or not Alito is a “committed originalist” obviously depends on what that term means. In this American Spectator article, Alito says that he “start[s] out with originalism” and that “I think I would consider myself a practical originalist.”]
5. “Focus on clauses, not cases”
Blackman and Barnett imagine that inquiring into a nominee’s understanding of “the meaning of clauses of the Constitution, rather than the outcome of particular cases,” would somehow yield more meaningful information about the nominee. I see zero reason to think that would be the case. Why would nominees have any greater difficulty ducking questions about clauses of the Constitution? (Blackman and Barnett also give no consideration to the incentives that shape why senators ask the questions they do.)
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Just a couple of admittedly trivial nits while I’m at it:
Blackman and Barnett say that Anthony Kennedy had a “thin public record” when President Reagan nominated him to the Court. He had in fact been a Ninth Circuit judge for more than a decade two decades.
They also say Reagan “nominated” Douglas Ginsburg after the Bork nomination failed. Reagan did announce his selection of Ginsburg, but as I understand it (and as Table A-1 of this CRS report would appear to confirm), Ginsburg’s candidacy collapsed before Reagan ever formally submitted his nomination.